Delhi District Court
Rishi Pal S/O Shri Laxmi Chand vs Sh. Sumender S/O Shri Ved Prakash on 1 April, 2013
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IN THE COURT OF SH. AMAR NATH
PRESIDING OFFICER: MOTOR ACCIDENT CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI
MACP no. 903/07
Rishi Pal s/o Shri Laxmi Chand
r/o Village & PO Gubhana,
Tehsil Bahadurgarh, District Jhajjar, Haryana
........Petitioner
Through: Advocate Anil Kumar
Chamber no. P9A ,
Near Post Office, Tis Hazari, Delhi.
VERSUS
1. Sh. Sumender s/o Shri Ved Prakash
r/o Village & PO Dhansa, Najafgarh, New Delhi. (Driver)
2. Sh. Satish Kumar Dagar S/o Shri Raghubir Singh,
Village & PODhansa Najafgarh, New Delhi. (Owner)
3. The Oriental Insurance Co. Ltd. (Insurer)
Regd. Office: Oriental House,
P.B. No.7057A25/27, Asaf Ali Road,
New Delhi2.
Or
Regional Office : RZ16/M, 1st Floor
Old Roshanpura, Gurgaon Road, Najafgarh,
New Delhi. ...... Respondents
Case No 903/06 Rishipal v/s Sumender &Ors Page 1 of 19
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1.Date of institution: 13.09.2006
2.Date of framing of issues: 15.03.2007
3.Date of hearing arguments : 18.03.2013
4.Date of decision: 01.04.2013.
AWARD/ JUDGEMENT:
1. Brief facts of the case are that on 16.03.2007 Sh. Rishipal (petitioner hereinafter) was a pillion rider while going to his work place at Gurgaon on motorcycle bearing No. HR14B7098 being driven by his friend Rakesh on the correct side of the road. At about 7.30 AM on that day when they reached at a distance of about one and half KM from their village Dhansa then they saw one RTV bearing No. DL1VA1443 (hereinafter the offending vehicle) coming from the left side of the road towards them at a very fast speed which was being driven by respondent no.1 (in short R1) in a rash & negligent manner and hit against the motorcyclist in contraventions of traffic rules. As a result of which, both the riders including driver fell down on the Kutcha road in field and motorcycle was badly damaged. Rakesh being driver of the motorcycle sustained simple injuries whereas petitioner Rishi Pal received grievous injuries. He was taken to Orthoplus Hospital for treatment. The offending vehicle was owned by Respondent no. 2 (in short R2) which was owned by respondent no. 3 (in short R3).
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2. Pursuant to service of the notice, respondents appeared and filed their respective written statements. R1 & R2 in their respective written statements denied the factum and manner of the accident pleading that the motorcyclist was himself responsible to cause the accident, in fact, the vehicle in question has been falsely involved in an alleged accident and as such, they cannot be held responsible to pay any amount of compensation.
3. A separate WS was filed by R3 wherein denied the factum and manner of the accident and claimed contributory negligence pleading that the accident did occur due to the carelessness rash & negligent driving of the motorcyclist. However, it has been admitted that vehicle was insured in the name of R2 with it vide policy no. 214701/2006/1091 valid during the period 26.05.2005 to 25.05.2006 covering the period of accident subject to the terms and conditions of the policy. An exorbitant amount of compensation is claimed without any legal or equitable basis.
4. On the basis of the pleadings of the parties, issues were framed vide order dated on 15.03.2007.
5. Having heard the arguments advanced on behalf of both the sides and after perusal of material including the evidence on record, my issue wise findings are as under: ISSUE NO. 1 Whether the petitioner sh. Rishi Pal suffered injuries a Case No 903/06 Rishipal v/s Sumender &Ors Page 3 of 19 -:4:- road accidental allegedly caused by R1 while driving vehicle bearing No. DL 1VA1443 on 16.03.2006 in rash and negligent manner? .....OPP
6. The onus to prove the issue was on the petitioner. PW 1 Sh. Rishipal, petitioner had averred the details of the accident through the affidavit Ex PW1/A and narrated the manner of accident in para no. 2 of his affidavit. On being crossexamined on behalf of R2 he denied the suggestions that accident took place due to his own negligence. He was also cross examined on behalf of the insurance company but nothing adverse came out during his cross examination to make him untrustworthy witness. His testimony assumes an importance for disposal of the issue as he was the author of the FIR.
7. PW2 HC Attar Singh proved the FIR bearing No. 49 which was registered on 17.03.2006 u/s 279/337 IPC with Police Station Jaffarpur Kalan on the statement of Petitioner Rishipal. Photocopy of FIR is Ex. PW2/A. Besides this, the petitioner has proved the Site plan Ex. PC and MLC is Ex. PD to establish the factum of the accident. Furthermore, he was the natural eye witness being the injured of the accident, thus, his testimony has to be acted / relied upon.
8. The standard of proof in a claim petition is not as rigid and as high, as in a criminal case. In a criminal case, proof beyond reasonable doubt is required, however, in a criminal petition, it is not so.
9. In Bimla Devi and others Vs. Himachal Raod Transport Case No 903/06 Rishipal v/s Sumender &Ors Page 4 of 19 -:5:- Corporation and others (2009) 13 SC 5 13, it has been observed that in a road accident, the strict principles of poof as in a criminal case are not attracted. Relevant portion of the judgment is reproduced as under: "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."
10. The aforesaid proposition of law has again upheld by the Hon'ble Apex Court in Parmeshwari Vs. Amir Chand and others 2011 (1) SCR 1096 (Civil Appeal No. 1082 of 2011).
11. From the evidence available on record, it stands established that the accident had taken place on the given time, date and place due to the negligent driving of driver of the offending vehicle and hence, issue no. 1 is decided accordingly in favour of the petitioner. ISSUE NO 2 Whether the petitioner is entitled to claim compensation, if so, what amount and from whom? .....OPP Case No 903/06 Rishipal v/s Sumender &Ors Page 5 of 19 -:6:-
12. As issue no.1 is decided in favor of the petitioner in affirmative, petitioner is entitled for the compensation. Quantum of the compensation, however, is required to be calculated.
13. It has been held in a catena of judgments by Hon'ble Apex Court and various High Courts that emphasis in cases of personal injury and fatal accident should be on awarding substantial, just and fair compensation and not a token amount. It has been held in a number of judgments that general principle in calculating such sum of compensation, should be so as to put the injured or legal heirs of a deceased in case of fatal accident, in the same position as he would have been, if accident had not taken place. In examining the question of damages for personal injury, pecuniary or nonpecuniary damages are required to be taken into account.
14. It has been held by Hon'ble Apex Court in R.D. Hattangadi V/s Pest Control (India) Pvt. Ltd., AIR 1995 SC 755 that: "In injury cases it is not easy to assess the amount of damages. The same can however be based on some element of guess work and some amount of sympathy linked with the nature of disability. However all such elements are required to be viewed with objective standard. While assessing the damages the court can not base its opinion merely on speculation or fancy though Case No 903/06 Rishipal v/s Sumender &Ors Page 6 of 19 -:7:- conjectures to some extent are inevitable.
Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future;
(ii) damages to compensate for the loss of amenities of life which may include a variety of matters ie. on account of injury, the claimant may not be able to walk, run or sit ; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
15. In view of above, in order to calculate the amount of compensation, the sum is required to be considered under the various heads Case No 903/06 Rishipal v/s Sumender &Ors Page 7 of 19 -:8:- as delineated above by Hon'ble Apex Court.
(a) MEDICINES
AND TREATMENT
16. Petitioner in his affidavit Ex PW1/A had averred that after the accident, he was removed to Orthoplus Hospital, Najafgarh New Delhi where his MLC bearing No. 1923 as Ex. PD was prepared and after having given the primary treatment, he was referred to RTRM Hospital, Jaffarpur Kalan, New Delhi for further management. Discharge Card is Ex.PW1/8 & PW1/9. In an accident, he had sustained multiple injuries and fractures in the right leg causing permanent disability. Due to the this accident he became permanent disabled person and thus he is totally bed ridden. It is averred that he had spent Rs. One lac amount on his treatment. Medical bills are Ex.
17. Perusal of record, it reveals that petitioner did take place on record the bills of expenses incurred by him amounting to Rs.35,571/. However, considering the nature of injuries, I am of the opinion that he must have incurred expenses over and above the bills placed on record but, I award a sum of Rs. 35,571/ to the petitioner towards medicines and treatment against the bills actually proved on record.
18. Now the question remains to be decided with regard the earning of the deceased. Principle has been decided by Hon'ble Apex Court that while considering amount of compensation, future prospective income must have to be taken into account on the basis of age and income of the deceased. Case No 903/06 Rishipal v/s Sumender &Ors Page 8 of 19 -:9:-
19. Before proceedings further, let me quote couple of relevant judgments:
In 2012 ACJ 583(SC)titled 'Mohan Soni v/s Ram Avtar Tomar & Ors.', their lordships were pleased to make the following observations:
"The loss of one of the legs either to the marginal farmer or the cyclerickshawpuller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effect on one's personal, family or social life but the loss of any of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cyclerickshawpuller".
20. In Pati Ram Vs. Kushal Pal Singh reported in 2010 ACJ 1481 it has been held that ; Quantum - Injury Leg Amputation of both legs resulting in permanent disability of 85 % in relation to left lower limb and 70 per cent Case No 903/06 Rishipal v/s Sumender &Ors Page 9 of 19 -:10:- in relation to right lower limb Tribunal assessed loss of earning capacity at 85 per cent and taking income on the basis of minimum wages awarded Rs 5,59,062 towards loss of income due to permanent disability , Rs 10,000/ towards medical expenses , Rs 15,000/ conveyance and speical diet and Rs 1,00,000/ for pain and suffering Appellate court fixed loss of earning capacity at 100 per cent and observing that minimum wages is not akin to future prospects computed loss of income due to permanent disability at Rs 9,86, 580/ plus awarded Rs 1,08,000/ towards conveyance , Rs 1,50,000/ towards pain and suffering Rs 1,00,000/ towards loss of amenities and Rs 50,000/ towards disfiguration Award enhanced from Rs 6,84,062 to Rs 13,94,580/.
In Gulam Nabi Bhat vs. Md. Arman Ali & Ors, MAC. App.335/2009 passed by Hon'ble High Court of Delhi decided on 07/08/2012, his Lordship was pleased to make following observations
14. For example, if the left hand of a claimant is amputated, the permanent physical of functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry.
On the other hand, if the claimant was a clerk Case No 903/06 Rishipal v/s Sumender &Ors Page 10 of 19 -:11:- in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as inn the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of 'loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity."
(c) LOSS OF INCOME ON ACCOUNT OF DISABILITY : 21 PW1 during the course of his deposition had stated that he was
working as a labour with M/s Guru Kripa & Associates, L37, New Colony, Gurgaon and his earning was Rs.3000/. The claimant did examine PW4 Case No 903/06 Rishipal v/s Sumender &Ors Page 11 of 19 -:12:- Davender Chauhan being Manager of the M/s Guru Kripa & Associates who testified that the he was on muster roll and his name is mentioned at serial no. 37 of the record. The said record is Ex. PW 4/1. He produced the salary certificate for the month of August, 2005 of the injured showing his salary as Rs.2394/. The salary certificate is Ex .PW 4/2. He further stated that he was working as a helper with his company. He did not join the services after the accident on 16.03.2006 and his services were terminated. The relevant record vide which his dues were finally settled is proved as Ex. PW 4/3. I do not find any reason to impeach the credit of the witness being an independent person. Nothing contrary has been shown or proved on record. Furthermore, insurance company had enough time to verify the genuineness of the documents filed alongwith the claim petition. Not only this, the minimum wages of a unskilled worker were Rs.3271/ as on 1.02.2006/. In the absence of the rebuttal to the document the said certificate has to be relied upon. Judgment (DHC) Munni Devi v/s New India Assurance Company Ltd in MAC Appeal no. 1128/12 decided on 16.2.2013 is relied upon. It is stated that due to injuries sustained in an accident his services are terminated and he became unemployed being permanent disabled person. He is not in a position to perform the work of a labour. It is further argued that the wages would go to increase due to inflation of rise in price index. An addition of 30% in his income on account of inflation to compute the loss of future earning capacity i.e. Rs.2394/ + 30% (Rs.718.2/) which comes to Rs.3112.2/. Case No 903/06 Rishipal v/s Sumender &Ors Page 12 of 19 -:13:-
Relevant paragraph 19 of the Judgment Gulam Nabi vs. Md. Arman Ali & Ors. (SUPRA) is hereby reproduced: This Court in Rakhi vs. Satish Kumar & Ors (MAC. APP. 390/2011) decided on 16.07.2012, referred to the reports of the Supreme Court in General Manager, Kerala State Road Transport Corporation, Trivandrum vs. Susamma Thomas (Mrs.) and Ors.(1994) 2 SCC 176, Sarla Dixit vs. Balwant Yadav.
(1996) 3 SCC 179, Bijoy Kumar Dugar Vs. Bidya Dar Dutta & Ors., (2006) 3 SCC 242, Sarla Verma & Ors vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 and Santosh Devi Vs. National Insurance Company Ltd. & Ors., 2012 (4) SCALE 559 and held that as per Santosh Devi even in the absence of any evidence as to future prospects an increase of 30% in the income has to be provided where the victim had fixed income or was a self employed.
22 Besides this, petitioner has proved a disability certificate Ex.PW5/A by examining Dr. K.K. Kumra, CMO, Ortho, DDU Hospital. According to Doctor, petitioner was found to have supracondylar fracture right femur with fracture both bones right leg with implant in SITU with right knee stiffness & shortening of 3 inch having 59% of permanent physical disability in relation to right lower limb. He further stated that his condition was found to be non progressive and not likely to improve. His day to day activities have been affected as he was a labour by Case No 903/06 Rishipal v/s Sumender &Ors Page 13 of 19 -:14:- profession at the time of accident and hence, his disability is total. 23 As regards the age of the petitioner is concerned, the petitioner has relied upon the Mark Statement of Middle class Ex. PA and school leaving certificate as Ex. PB wherein his date of birth is mentioned as 01.08.1979. If the age of the petitioner is calculated on that basis then it came to be less than 27 years. An operative multiplier shall be '17' as per the judgment of Sarla Verma v/s DTC & Anr. (2009) 6 SCC 121. Considering the disability certificate issued by the doctor wherein the disability has been stated as 59% and hence, compensation is granted Rs. 3112.2X59/100X17X12 by applying the ratio of the judgment passed by our own Hon'ble High Court in case titled as Gulam Nabi Bhat Vs. Md. Arman & Ors (SUPRA) after relying upon the judgment of Apex Court passed in Raj Kumar vs. Ajay Yadav 2011 ACJ(SC)wherein their Lordships have pleased to make the following observations.
The provision of Motor Vehicles Act, 1988 ('the Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the Case No 903/06 Rishipal v/s Sumender &Ors Page 14 of 19 -:15:- damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequence, is inevitable. A person is not only to be compensation for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
24 I, therefore, award a sum of Rs.3,74,584.39/ rounded off to Rs3,74,584/ the petitioner towards loss of earnings due to disability. New India Assurance Co. Ltd. vs. Naresh Kumar & Ors MAC. APP. No. 493/2012 decided on 07.05.2012 (DHC) is relied upon.
d) PAIN & SUFFERING: 25. Pain and suffering is covered under non pecuniary damages. To
calculate the same, nature of injuries sustained by the injured, duration during which he got the medical treatment and was confined to bed, are some of the factors which are required to be taken into account.
26. In the present case, it is apparent from the medical record that he had sustained multiple injuries and fractures in the right leg causing Case No 903/06 Rishipal v/s Sumender &Ors Page 15 of 19 -:16:- permanent disability. Due to the this accident he became permanent disabled person and thus he is totally bed ridden. The mental agony which the petitioner might have undergone at the time of accident cannot be equated or quantified in terms of money. Physical pain which the petitioner must have undergone during the course of treatment would have been immense.
27. To compensate the petitioner under this head, I award a sum of Rs. 50,000/ to the petitioner for pain and suffering. CONVEYANCE & SPECIAL DIET :
28. PW1 during the course of his deposition has failed to substantiate the amount spent by him on conveyance and special diet with documentary evidence, however considering the nature of injuries sustained by him, he would have paid repeated visits to the hospital / doctor for his follow up treatment incurring expenses on conveyance which is apparent from the Medical Treatment papers available on record. He must have required to take special diet to recover from the injuries sustained by him.
29. I, therefore, award a sum of Rs 25,000/ to the petitioner towards Conveyance and special diet.
30. Keeping in view the nature of injuries and evidence available on record, following amount shall be just compensation: 1 For Loss of earning on account of disability : Rs.3,74,584/ Case No 903/06 Rishipal v/s Sumender &Ors Page 16 of 19 -:17:- 2 For medicine and treatment : Rs. 35,571 3 Pain and Suffering : Rs. 50,000/ 4 Conveyance &Special Diet : Rs. 25,000/ 5 Loss of Amenities : Rs. 25,000/ _________________________________________________________________ Total : Rs. 5,10,155/ (Rupees Five Lakhs Ten Thousand One Hundred and fifty five only) INTEREST
31. This petition was filed on 13.9.2006. There is no material to withhold the interest. Petitioner is awarded interest @ 7.5% per annum from the date of filing of the petition till its realization. LIABILITY
32. R3W1 Sh. V.D Talwar was examined to prove the notice u/o 12 Rule 8 CPC as Ex. R3W1/A issued to R2 through registered post with a direction to produce the permit of the offending vehicle covering the date of accident. Postal receipts are Ex. R3W1/B and the copy of the policy is Ex. R3W1/C. During the examination, he stated that the copy of the permit of the offending vehicle Mark A is supplied which is found O.K. after due verification. Admittedly, the offending vehicle was being driven by R1 which was owned by R2 and the same was insured with R3 and hence, R1 is the principal tort feasor and R2 and R3 are vicariously liable. All the respondents are held jointly and severally liable to pay the awarded amount. Since the offending vehicle was insured with the R3, Case No 903/06 Rishipal v/s Sumender &Ors Page 17 of 19 -:18:- therefore it shall pay the awarded amount.
33. In view of the above discussions, issue no. 2 is decided in favour of the petitioner and against the respondents.
ISSUE NO. 3
Relief.
34. In view of the findings on issues no. 1 and 2, the petitioner is awarded Rs. 5,10,155/ (Rupees Five Lakhs Ten Thousand One Hundred and fifty five only) with interest.
35. The awarded amount be deposited by R3 with Punjab National Bank, Branch Dhasan Badli, Haryana within 30 days from today in the S.B.Account no. 0594000100188196 in the name of the Rishi Pal under intimation to the Nazir ( with proof of notice to the claimant & his counsel) of this Court. Upon the aforesaid amount being deposited, Punjab National Bank is directed to release entire amount of the award with up to date interest to the petitioner by transferring the same to his Saving Bank Account
36. On the request of the beneficiary, Bank shall transfer the Savings Account to any other branch according to his convenience.
37. R3 shall inform the petitioner as well as his counsel through registered post that the cheque of the awarded amount are being deposited so as to facilitate the petitioner to know about his deposit in his account.
38. Copy of the award be supplied to both the parties at free of cost. Case No 903/06 Rishipal v/s Sumender &Ors Page 18 of 19 -:19:- Copy of this award be sent to the Nodal Officer of the Bank alongwith the Court stamped, copy of the photographs and signature of the claimant.
39. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (AMAR NATH)
DATED:01.04.2013. PRESIDING OFFICER,
MOTOR ACCIDENTS CLAIMS TRIBUNAL,
DWARKA COURTS, NEW DELHI.
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